The defendant's appeal is dismissed.

1. The gist of the grounds for appeal is that the Defendant, as a believers religious organization’s believers, refused to enlist in active duty service according to a religious conscience, and such right to conscientious objection is guaranteed pursuant to Article 19 of the Constitution and Article 18 of the International Covenant on Civil and Political Rights. Thus, the Defendant’s refusal to enlist in active duty service constitutes “justifiable cause” as prescribed by Article 88(1) of the Military Service

Therefore, the judgment of the court below which found the Defendant guilty of the facts charged of this case is erroneous in the misapprehension of legal principles and affecting the conclusion

2. Determination

A. “Justifiable cause” under Article 88(1) of the Military Service Act is, in principle, based on the existence of an abstract duty of military service and the recognition of the performance of the duty itself, and the reason that justify the nonperformance of the duty specified, i.e., a cause not attributable to the nonperformancer, such as a disease, should be deemed to be limited

However, even in cases where a person who has refused to perform a specific duty is guaranteed by the Constitution of Korea and furthermore, has superior constitutional value to the function of the legislative purpose of the above provision, if punishment is imposed by applying the above provision, it would result in an undue infringement on his/her constitutional rights. Therefore, it is reasonable to deem that there exists “justifiable cause” to refuse to perform the duty, in order to exclude such unconstitutional situation.

However, among the freedom of religious conscience, the freedom of conscience realization by passive omission may conflict with other legal interests in the process of realizing that conscience, and if so, it may inevitably involve restriction. In such a case, the freedom of religious conscience realization by passive omission is restricted, and it is immediately deemed that there exists an infringement on the essential substance of the freedom of religious conscience.